ASEAN Cooperation Project Proposal
Annex 20 FISHERIES SUBSIDIES
2. UPDATE REGIONAL INITIATIVES IN RESPONSES TO WTO ON FISHERIES SUBSIDIES
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Annex 20
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In addition, in following up the recommendations made from the previous SEAFDEC Webinars on Fisheries Subsidies organized in 2020 and 2021 and subsequently advised by the SEAFDEC Council during its 53rd Meeting in 2021 on the needs for the capacity building program on the stock assessment for multi-gears and multi-species and how to determine the reference points for sustainable management of fisheries resources, SEAFDEC with funding support from the Japanese Trust Fund (JTF) and the technical assistance from the Food and Agriculture Organization of the United Nations (FAO), will organize the Consultative Planning and Training Workshop on Stock Assessment in Support the Implementation of the International Commitments for Sustainable Use of Fisheries Resources in Southeast Asia, which to be held on 9 December, and 13 ̶ 17 December 2021, respectively, at SEAFDEC Secretariat, Bangkok, Thailand. The purpose of the Consultative Planning and Training Workshop is to gather the ideas and gain knowledge on stock assessment methods based on the current status and level of understanding and knowledge on stock assessment and the available datasets of SEAFDEC Member Countries and would further develop comprehensive training courses in the future.
3. REQUIRED CONSIDERATION BY THE 24FCG/ASSP
• To take note of:
- The consolidated views of SEAFDEC Member Countries on the Draft Consolidated Text as the results of the SEAFDEC Webinar Series on WTO Fisheries Subsidies Draft Consolidated Text (Negotiation Group on Rules) on 10 and 17 June 2021
- The follow-up actions on the organization of the Consultative Planning and Training Workshop on Stock Assessment in Support the Implementation of the International Commitments for Sustainable Use of Fisheries Resources in Southeast Asia to be organized on 9 and 13 ̶ 17 December 2021.
• To provide directive guidance on the way forward for fisheries subsidies.
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Appendix 1 of Annex 20 SEAFDEC Webinar Series:
WTO Fisheries Subsidies Draft Consolidated Text (Negotiation Group on Rules) (10 and 17 June 2021)
SEAFDEC organized the Webinar Series on WTO Fisheries Subsidies Draft Consolidated Text (Negotiation Group on Rules) on 10 and 17 June 2021 with funding support from the Japanese Trust Fund. As a response to the recommendations made by the SEAFDEC Council during its 53rd Meeting in April 2021 for SEAFDEC to facilitate the establishment of a regional platform for discussion and development of common position of the Member Countries on fisheries subsidies that could be reflected at the Ministerial Meeting of the WTO scheduled on 15 July 2021 and in November 2021, the Webinar Series was convened in two sessions. The first of the Webinar Series organized on 10 June 2021 was an open session and participated in by representatives from SEAFDEC Member and non-Member Countries as well as from international and regional organizations. Subsequently, the second session of the Webinar Series on 17 June 2021 was organized as a closed session and attended by representatives from the SEAFDEC Member Countries (except Singapore). During such Webinar Series, the discussion focused on the “Fisheries Subsidies Draft Consolidated Chair Text, TN/RL/W/276 dated 11 May 2021,” from which the issues of concern of the SEAFDEC Member Countries were identified corresponding to every article of the Chair Text.
Although the Webinar Series intended to come up with common position among the SEAFDEC Member Countries, development of such common position was challenging due to the diverse views and positions expressed by the countries. Nonetheless, the issues and concerns identified by the countries were summarized and shown in the following Table:
Article Consolidated Views of SEAFDEC Member Countries*
General Principles • The Instrument should be made part of the Agreement on Subsidies and Countervailing Measures (SCM Agreement), and not as a standalone document [MY]
• The Instrument, once finalized, should be a legally binding instrument and should be enforceable under the WTO Dispute Settlement Understanding (DSU) [PH]
1. Scope • Countries that agree with the whole Article 1: MM, PH
• Other countries generally agree with Article 1, but with some comments:
- Agree with Article 1.1 [TH]
- Article 1.2 on fuel subsidies is not agreeable [BN, KH, JP, MY]
- Article 1.2 on territoriality is not agreeable [VN]
- Article 1.2: would agree only if small scale and artisanal fisheries are excluded in the scope[ID]
2. Definitions • Countries that agree with the whole Article 2: BN, JP, MY
• Other countries generally agree with Article 2, but with some comments:
- Terminologies in Article 2 should adhere to the terms and principles embodied in relevant international instruments such as the PSMA, FAO, FAO IPOA-IUUF [PH]
- Terminologies in Article 2 should adhere to the terms embodied in relevant fisheries-related international instruments developed by FAO [VN]
- Definition of fishing and fishing related activities are agreeable but needs more clarification on the definition of operator [ID]
3. Prohibition on Subsidies to IUU Fishing
• Countries that agree with the whole Article 3: BN
• Other countries generally agree with Article 3, with some comments:
- In Article 3.1, the phrase “or fishing related activities in support of such fishing” should be added after the end of original sentence [KH]
- Article 3 should not be applied to “operator” [MY]
- Article 3 should be applied to “operator” [MM]
- Article 3.2: support the determinant entities of IUU fishing [ID]
- In Article 3.3 (a): concerns expressed on the determination of IUU fishing activities in overlapping areas [VN]
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Article Consolidated Views of SEAFDEC Member Countries*
- In Article 3.3 (a): determination of IUU fishing activities in overlapping areas should follow the principles of UNCLOS [PH]
- In Article 3.3 (b): it might be difficult to acquire positive evidence for determining IUU fishing activities [MM]
- Article 3.3 (c): would not support the inclusion of the phrase “ [, and shall provide an opportunity to the flag State and subsidizing Member to submit information to be taken into account in the determination] [ID]
- New Article 3.3 (d) should be added so that the issue on “forced labor” is considered [KH]
- In Article 3.4: specific duration should be indicated for application of prohibition of subsidies [MM]
- In Article 3.6: technical support for implementation of this Article is required [MM]
- Article 3.8: no exemption should be provided in Article 3 [JP, PH, TH]
- Article 3.8: exemption should be provided to small-scale and artisanal fisheries operated for livelihood [VN]
- Article 3.8: should provide flexibility for fishing within the 12 nautical miles, with or without further filters or qualifications [PH]
- Article 3.8: exemption period should follow the Agreement on Aquaculture (AoA) and Trade Facilitation Agreement (TFA) [MY]
4. Prohibition on Subsidies Concerning Overfished Stocks (OFS)
• Countries that agree with the whole Article 4: BN
• Other countries generally agree with Article 4 but with some comments:
- Text of Article 4.3 should be changed to “Notwithstanding Article 4.1, a Member may grant or maintain subsidies referred to in Article 4.1: if such subsidies and/or other measures for stock recovery are implemented in a manner of promoting the rebuilding of the stock to a biologically sustainable level.” [JP]
- Article 4.3: would not support flexibilities that could lead to enhanced capacity in the overfished areas [ID]
- Article 4.4: exemption should be permanently provided to the subsidies for fishing and fishing related activities within 12 nautical miles from baselines in order to give flexibility to artisanal fisheries [TH]
- Article 4.4: exemption should be extended up to the countries’ EEZs [MY]
- Article 4.4: as the same rules and regulations are applied to small fishing vessels and off-shore fishing vessel, SDT in these areas might not be necessary [MM]
- Article 4.4: geographical terminology, e.g. 12 nm should not be referred to, since SSF determination may differ in different countries, and for some countries such determination may not follow geographical areas [VN]
- Footnote 9: although the use of MSY is agreeable, difficulties could be encountered in undertaking stock assessments in terms of cost, expertise, and resources [MY]
5. Prohibition of Subsidies Concerning Overcapacity and Overfishing (OCOF)
• Countries that agree with the whole Article 5: BN
• Other countries generally agree with Article 5 but with some comments:
- Article 5.1: would support the list-based approach [ID]
- Article 5.1.1: would not support any fisheries management flexibility [ID]
- Article 5.1.1: there is too much flexibility for countries to provide subsidies in the case where fisheries management is in place [PH]
- Article 5.1 and Footnote 9&10: should be modified to include reference points that are applicable for multi-gears and multi-species fisheries [VN]
- Article 5.1.1 and Footnote10: would support this provision which is accessible to all members with fisheries management and allow the policy space for members to provide necessary subsidies for the development of fisheries sector. Members could also use alternative references points other than MSY that could indicate a biological sustainable level [TH]
- Article 5.1.1 and footnote 10: no need to make geographical limitations [JP]
- Article 5.2 (a): would support but without any “contingency test” [ID]
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Article Consolidated Views of SEAFDEC Member Countries*
- In Article 5.2 (b): would support for government-to-government access to agreements in the EEZ is not agreeable as this has been opposed by concerned stakeholders [MM]
- Article 5.2 (b) on access agreement, should be followed by stricter notification requirements [ID]
- For Article 5.5: preference is on ALT 2 [JP]
- Article 5.5: preference is on ALT 2 which is a good starting point for the negotiation, but exemption should be permanently provided to the subsidies for fishing and fishing related activities within 12 nautical miles from baselines in order to give flexibility to artisanal fisheries [TH]
- Article 5.5: SDT provides too much flexibility for developing countries that may have no fisheries management in place, to provide subsidies [PH]
- Article 5.5 Alt 2, strongly opposed because SDT provided to small-scale fisheries of developing countries including LDCs should be without time limitation [ID]
6. Specific provisions for LDC members
• Agree in principle with Article 6, but there should be specific and appropriate timeframe for the transitional period under this article [TH]
- In Article 6.1: transition period should be 5 years [KH]
7. Technical Assistance and Capacity Building
• Agree in principle with Article 7 and that technical assistance and capacity building should be provided to developing country Members to support implementation of the Instrument (All countries)
8. Notification and Transparency
• Countries that agree with the whole Article 8: BN
• Other countries generally agree with Article 8 with some comments:
- Under Article 8.2: add new topic (b) “any vessels and operators for which the Member has information that reasonably indicates the use of forced labor, along with relevant information to the extent possible,” and change the current topic (b) to topic (c) [KH]
- In Article 8.3: request for additional information should be based on concrete reasons [MY]
- Provision of information and notification as part of this agreement (Instrument) should not create burden to the countries [ID]
- Provision of additional information and notification as part of this
agreement (Instrument) should not create burden to the countries, and only for such information that are directly relevant to fish subsidies [PH]
- For Article 8.1 (a) ii: countries might have difficulties in providing “catch data by species” due to the multi-gears and multi-species nature of the fishing activities [MY, VN, ID]
- In Article 8.1 (b) iv: common understanding should be provided on some terminologies, e.g. fleet capacity [VN]
- Provision on notification should not be linked with the SDT provisions [ID]
- Article 8.2 (b): notification requirement for access agreement need to be stricter to provide information on surplus quantity and price for quantity (ID)
9. Institutional Arrangement
• Countries that agree with the whole Article 9: BN
• Other countries generally agree with Article 9 with some comments:
- The instrument should be an annex to the existing SCM Agreement, and thus no new Committee should be established [MY]
- Any legal form of this Instrument is acceptable [ID]
- The mandate, responsibilities, and limitations of the proposed Committee should be clearly specified [PH]
- In Article 9.3: clarification should be provided on the terminology
“fishery regime,” whether this refers to “fishery management” or “fishery subsidy” regime [VN]
10. Dispute Settlement • Countries that agree with the whole Article 10: BN, TH
• Other countries generally agree with Article 10 with some comments:
- possible ‘add-ons’ to this Article should be discussed [PH, ID]
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Article Consolidated Views of SEAFDEC Member Countries*
- position of the country for this Article is reserved in relation to dispute settlement between coastal State and flag State [VN]
- would support to limit the discipline on Violation Complaints and exclude Non-Violation and Situation Complaints[ID]
11. Final Provisions • Countries that agree with the whole Article 11: (All countries)
• Other countries generally agree with Article 11 with some comments:
- current text of Article 11.4 (b) is not agreeable, especially in relation to territoriality, i.e. territorial or maritime jurisdiction issues already settled by international courts should be exempted from this provision [PH]
*BN: Brunei Darussalam; KH: Cambodia; ID: Indonesia; JP: Japan; MY: Malaysia; MM: Myanmar; PH:
Philippines; TH: Thailand; VN: Viet Nam
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Annex 21